Bacon v. Road Improvement District No. 1

• Decision Date: 26 February 1923
• Docket Number: 188
• Citation: 248 S.W. 267,157 Ark. 309
• Parties: BACON v. ROAD IMPROVEMENT DISTRICT No. 1
• Court: Arkansas Supreme Court

248 S.W. 267

157 Ark. 309

BACON v. ROAD IMPROVEMENT DISTRICT No. 1

No. 188

Supreme Court of Arkansas

February 26, 1923

Appeal from Howard Chancery Court; James D. Shaver, Chancellor affirmed.

Decree affirmed.

W C. Rodgers, for appellants.

Since the answer to the cross-complaint traverses only the allegations to the effect that when the district issued its bonds no assessment of benefits had been made, and that, when act 594, Acts 1921, was passed, the bonds of the district had been sold and contracts for the payment of money borrowed had been entered into by the district, all the other allegations of the cross-complaint must be taken as true. Crawford & Moses' Digest, § 1231; 56 Ark. 73, 79. The road district was not legally formed because the boundaries were not definitely fixed. The boundaries of such districts must be as accurately and definitely specified as is required for a valid deed. 71 Ark. 211; 106 Ark. 83; 143 Ark. 83; 144 Ark 240, 244; 122 Ark. 491; 139 Ark. 574; 130 Ark. 70. The Legislature by the curative act, vol. 1, Road Acts 1919, p. 201, made no change in the description of the property of the district except to say it was in Howard County; but, if the district as organized by the county court was illegal and void, how could the curative act legalize and validate it? House v. Road District No. 4, 154 Ark. 218; 122 Ark. 491, 501, 126 Ark. 416, 418, 419. The formation of the district was invalid, because it called for all the property in the district, which necessarily includes personal property, and the curative act offends in the same way, in describing, in addition to the lands, all the property in the town of Dierks and all other towns in the district. 147 Ark. 181, 183. It is not sound to say that, because the bonds of the district had been sold and contracts for the payment of money borrowed had been entered into by the district, the special act No. 594 is therefore unconstitutional and void, since, if the proceedings of the district and its officers were void, and its officers without authority to enter into any contract at all, there is nothing for the Constitution to protect. 147 Ark. 252, 266; 40 Ark. 251; 111 U.S. 400; 142 Ark. 378. The law authorizing the expenditure of money or the levy of a tax for road purposes contemplates not only a legal and regular formation of the district but also a legal and regular assessment of benefits. 119 Ark. 188; 149 Ark. 476; 151 Ark. 398, 404. The decree rendered in June, 1920, in so far as it purported to hold the district regularly formed, was erroneous, because the law which alone could give it life has not been complied with. However, that adjudication is not binding upon persons who were not parties to it; and these interveners, any one of whom has a right to maintain this suit, were not parties to that litigation. 88 Ark. 355; 52 Ark. 541; 54 Ark. 645; 108 Ark. 306; 141 Ark. 288; 33 Ark. 704; 141 Ark. 140; 101 U.S. 160; Dillon, Municipal Corporations, § 919; 55 Wis. 161.

Abe Collins, Epperson & Jackson, and Buzbee, Pugh & Harrison, for appellees.

The validity of the district and the assessment of benefits made therein have been determined by judicial decision, and are no longer open to question. The special statutes, Road Acts 1919, vol. 1, p. 201, and act 285, extraordinary session 1920, were before this court in the case of Payne v. Road Improvement District, 149 Ark. 491, and their validity sustained. See also 152 Ark. 170. There is no merit in the contention that these appellants are not bound by the decree rendered in 1920 sustaining the regularity of the formation of the district, from which no appeal was taken. That suit was brought by thirty-six taxpayers, under the rule that such taxpayers acted for the benefit of the other taxpayers in like situation. The only question open for decision is the validity of the act No. 294, Acts 1921, which undertook to eliminate a large quantity of land from the district. This court, in 152 Ark. 170, declined to pass upon it for reasons there stated. That act was invalid, being an impairment of the obligations of the contract between the district and the purchasers of the bonds, and as placing an undue burden on the lands remaining in the district. 130 Ark. 70; 139 Ark. 574; 145 Ark. 49; Constitution, U.S. art. 1, § 10; 150 Ark. 94.

OPINION

MCCULLOCH, C. J.

The road improvement district which is plaintiff in this action was originally created under the general statutes by an order of the county court on October 7, 1918, but there was a special statute enacted by the General Assembly of 1919 curing irregularities in the organization and establishing the district as a valid road improvement district covering the territory embraced in the original order creating it. The assessments of benefits were completed, a contract was let for the construction of the road, and a great portion of the improvement was constructed--eleven miles of the seventeen-mile length of the proposed road. Bonds in the sum of $ 130,000 to raise money to pay for the cost of the improvement were also issued and sold subsequent to the enactment of the curative statute referred to above.

The present action was instituted by the board of commissioners against all delinquent owners of land in the district, including appellants, and an appeal has been prosecuted from the decree of the chancery court decreeing payment of the delinquent assessments and declaring a lien on the lands.

Appellants answered, and filed an answer and cross-complaint attacking the validity of the assessments and also the validity of the district itself.

So far as concerns the correctness and validity of the assessments it is sufficient to say that the attack comes too late, since the assessments have been approved and have become final. There were attacks on the validity of the assessments by owners of property who protested against them in apt...